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Saturday, December 16, 2006

Court - Kentucky Supreme Court carries out records purge - county judges and prosecutors irate

An amazing story from the Louisville Courier Journal this morning, reported by Andrew Wolfson. Here is just the beginning of the long report:

State court officials have endangered the public and undercut the prosecution of spouse abusers and other offenders by destroying all misdemeanor records 5 years or older, prosecutors and judges in Jefferson County say.

Interim Jefferson Circuit Clerk Michael Losavio said the Administrative Office of the Courts sent "six or seven burly men" to the courthouse Nov. 29 to haul away all microfilm and microfiche records dating from before 2001, all of which have since been destroyed.

Electronic records of old misdemeanor convictions also have been purged from the state court computer system.

State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years under the policy, which is designed to free up space and save money on storage costs.

Prosecutors and judges said the move will be a boon for criminals.

"This wipes an offender's record clean and cuts us off at the knees," said Chris Foster, an assistant commonwealth's attorney who prosecutes domestic violence cases.

Commonwealth's Attorney Dave Stengel said prosecutors have lost a key tool used in sentencing and bond hearings, as well as in trials, to show that an offender has a pattern of misconduct.

And noting that day-care centers and nursing homes will no longer be able to check job applicants for violent misdemeanor convictions over 5 years old, county attorney Irv Maze said the decision to destroy those records "puts our most vulnerable citizens at risk."

District Judge Jerry Bowles said the move also will prevent enforcement of a federal law that bars people from owning or possessing firearms if they ever had a domestic violence conviction. "The whole purpose was to get guns out of batterers' hands permanently," he said.

Jefferson County Chief District Judge Donald Armstrong Jr. said he "asked and begged the AOC not to do this, but they said they had an order."

Armstrong said the decision to destroy records also hurts "innocent people" who are no longer able to prove that a charged was dismissed or that they were acquitted.

Deputy clerks say two or three people a day come to the courthouse -- some in tears -- after an employer or prospective employer finds out that they were arrested on a charge that was later dropped.

"Now they can't prove that," Armstrong said.

Losavio and Stengel said one supervisor in the clerk's office archives -- Diane Hawkins -- was so intent on saving the records that she threw herself across them; Losavio calls her "Joan of Archives."

More from the story:
Thomas Dibble, a records manager for the Superior Court of New Jersey and a nationally recognized expert on record retention, described the Kentucky AOC's seizure of documents last month as "high-handed" and said the state erred in not involving court users in the decision-making process. * * *

Dibble, who consults for the National Center for State Courts, said he would argue that electronic records should be kept permanently because "computer memory is so cheap" and there is no reason to discard them.

Most court systems in other states also have policies on purging records, but most only set minimum periods for which records must be retained, and allow individual courts to elect to keep them longer.

The Kentucky policy is mandatory. [ILB - What is Indiana's policy?]

The policy does require that case information be retained for dozens of crimes that carry enhanced penalties for subsequent offenses.

But First Assistant Commonwealth's Attorney Harry Rothgerber Jr., said that when his office checked on an offender convicted last year of threatening Judge Bowles, it found the offender's conviction for possession of drug paraphernalia had been erased.

As a result, when charged with the same offense earlier this year, he was labeled as a first offender. A bench warrant is pending for his arrest.

"We have a person out there who could be charged with a felony" if the previous records weren't destroyed, Rothgerber said. "I am livid about this."

Carol Cobb, who heads the commonwealth's attorney's domestic violence division, said the destruction of records will undercut the truth-in-sentencing law, which allows jurors to be told about prior misdemeanor convictions.

"It is very upsetting that they would do this without consulting the people it affects," she said.

Posted by Marcia Oddi on December 16, 2006 09:35 AM
Posted to Courts in general